Monday, November 02, 2015

Over at Right Wisconsin, I have a piece addressing the legacy media's blindspot on campaign regulation and disclosure. In general, journalists understand that compelled disclosure of the identity of speakers can chill speech. This is why they support laws that shield journalists from the obligation to disclose the identity of their sources. Compelled disclosure might cause those sources to dry up.

It's a defensible position - one I generally share - but it comes at a cost. The public's right to know - to assess the credibility of sources and the journalists who rely on them - is compromised. But that compromise may be worth it because it encourages speech - by sources and those who report on them - that would otherwise not occur.

The same is true of compelled reporting of the identity of those who pool their resources to speak. The public may find the identity of those behind a message useful in assessing the message and the politicians who support it. But forced reporting may deter people who do not wish to expose themselves to retaliation or disapprobation. There is a trade-of to be made and distinguishing between express and issue advocacy may be a good place to draw the line.

I could make the same point about the legacy media's typical attitude on "coordination." i.e., the idea that cooperation with a candidate to convey a message that the candidate supports makes the resources spent to convey that message a "contribution" to a candidate. This requires that the "contribution" be disclosed, but coordination is not -as is so often falsely reported - just about disclosure. A coordinated expenditure not only needs to be disclosed, it cannot be made at all. The poor soul who makes it - who spends money to speak - may go to jail for exceeding the limits on contributions.

Of course, the media can coordinate as well as anyone else. It can find out what a candidate wants to say and, if it supports that message, use its considerable resources to convey it. In doing so, it confers a substantial benefit upon the candidate. Yet I am sure that the media would scream long and loud - and rightly so - about a law that would make its reportage a campaign "contribution." To do so would improperly burden freedom of speech and the open exchange of ideas.

But why should the media - corporations who already have a great big soap box - have greater rights than those who must rent that soap box?

The answer is not obvious. Legacy media often argue that the press is "special" - sort of like a utility - that is responsible and trustworthy in a way that people who have to pay for space in their pages and time on their air are not. This is not only a dubious distinction (there is no reason to assume it is true), it is an increasingly incoherent one. Barriers to entry in the communications field have fallen away. Anyone can build a website. Anyone can stream video content. The only thing that distinguishes those who can charge others to be included in their content from others is market power. Market power seems like a poor basis on which to allocate speech rights.

Isn't their a difference between "legitimate" news stories and a sixty second ad spot? Not always. An ad may well reveal important information that the legacy media has ignored. For example, the recent Benghazi hearings highlighted disclosures that Hillary Clinton apparently knew - or at least believed - that attacks on the American embassy were organized terrorism and not a popular uprising in response to a video critical of Islam. Yet she seems to have told - or at least acquiesced in telling - the public something else. One would think that this was a compelling disclosure - one of Watergate-like proportion. But, while you may find the facts buried in the ninth graf, the legacy media has blown off the story. Its journalists have generally preferred to emphasize Clinton's supposed "triumph" at the hearing by which they seem to mean that she did not go all Col. Nathan Jessup on Trey Gowdy. (Indeed, Washington Post fact checkers have tied themselves into knots to avoid acknowledging the obvious.)

But even if you dispute my view of the matter, a sixty second "phony issue" ad pointing out another view would seem as relevant to the public's right to know and as much a contribution to our public discourse as anything in the pages of the Washington Post or seen during the nightly news.

Nor can we assume that the media is not a "special interest." Just about anyone - including people with a variety of interests - can own a media company. In any event, what the New York Times wants is not intrinsically of greater value than what George Soros or David Koch want. It should have no greater First Amendment rights.

About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.